Tom Goldstein, frequent Supreme Court litigator and publisher of SCOTUSblog, asked the Supreme Court today to rule on the legality of President Trump's designation of Matthew Whitaker as Acting AG. The issue came up in Goldstein's motion to substitute Rod Rosenstein (and not Matthew Whitaker) in a case against the AG.

The case pits the AG Succession Act (which specifies an automatic line of succession for the office) against the Vacancies Reform Act (which applies more broadly and gives the President more flexibility in naming an acting officer). It also asks whether the President's designation violated the Appointments Clause, because the AG is an "officer" that requires Senate confirmation.

The government's position is set out here, in the OLC memo concluding that President Trump had authority to designate Whitaker. Walter Dellinger and Marty Lederman have an outstanding "initial reactions" here, at Just Security.

In his opinion in Democratic Executive Committee of Florida v. Detzner, United States District Judge Mark Walker, Chief Judge for the Northern District of Florida, has granted the motion for a preliminary injunction and ordered Florida to "allow voters who have been belatedly notified they have submitted a mismatched-signature ballot to cure their ballots by November 17, 2018, at 5:00 p.m."

After finding that the plaintiffs had standing and were not barred by laches, Judge Walker reached the question of whether the plaintiffs were likely to prevail on their constitutional claims on the infringement of the right to vote. Judge Walker decided that the standard derived from Anderson-Burdick should be applied:

Under Anderson-Burdick, a court considering a challenge to a state election law “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’ ” Burdick. When an election law imposes only reasonable, nondiscriminatory restrictions upon the constitutional rights of voters, the states’ important regulatory interests are generally sufficient to justify the restrictions. Id. But, “[h]owever slight the burden may appear . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitations.” Common Cause/Ga. v. Billups, 554 F.3d 1340, 1352 (11th Cir. 2009). This is not a litmus test, rather the court must balance these factors and make hard judgments. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 190 (2008). Finally, “Anderson/Burdick balancing . . . should not be divorced from reality, and [] both the burden and legitimate regulatory interest should be evaluated in context.”

[some citations omitted]

Judge Walker found that the "injury is the deprivation of the right to vote based on a standardless determination made by laypeople that the signature on a voters’ vote-by-mail or provisional ballot does not match the signature on file with the supervisor of elections." The judge noted that there are "dozens of reasons a signature mismatch may occur, even when the individual signing is in fact the voter," and concluded that disenfranchisement of "approximately 5,000 voters based on signature mismatch is a substantial burden." While Judge Walker found that Florida's interests "to prevent fraud, to efficiently and quickly report election results, and to promote faith and certainty in election results" were compelling, the "use of signature matching is not reasonable and may lead to unconstitutional disenfranchisement."

Judge Walker extended the period for voters to address a potential signature mismatch by noting that the previous opportunity to cure has "proved illusory."

Provisional ballot voters are provided no opportunity to cure under the law. Without this Court’s intervention, these potential voters have no remedy. Rather, they are simply out of luck and deprived of the right to vote. What is shocking about Florida law is that even though a voter cannot challenge a vote rejected as illegal, any voter or candidate could challenge a vote accepted as legal. The burden on the right to vote, in this case, outweighs the state’s reasons for the practice. Thus, under Anderson-Burdick, this scheme unconstitutionally burdens the fundamental right of Florida citizens to vote and have their votes counted.

Additionally, Judge Walker noted that although the plaintiffs' claims rested on the First Amendment and Equal Protection Clause of the Fourteenth Amendment, he was also troubled by the lack of procedural due process, citing the Georgia mismatch decision in Martin v. Kemp.

Judge Walker's 34 page opinion did not cite Bush v. Gore (2000).

The Florida recount, like the Georgia recount continues, more than a week after election day.

The Court has granted certiorari in Maryland-Capital Park and Planning Commission v. American Humanist Association centered on the constitutionality of a 40 foot "Latin Cross," owned and maintained by the state of Maryland and situated on a traffic island taking up one-third of an acre at the busy intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg, Md.

Recall our earlier discussion regarding the divided decision in which the Fourth Circuit concluded that the government cross violated the First Amendment's Establishment Clause, reversing the district judge. In essence, the majority found that while there may be a legitimate secular purpose to the cross, considering that it was erected to local soldiers who died in World War I, the cross is specifically Christian and "the sectarian elements easily overwhelm the secular ones" in the display. A "reasonable observer" most likely viewing the 40 foot cross from the highway would fairly understand the Cross to have the primary effect of endorsing religion and entangles the State with religion.

In an Order in Georgia Coalition for the People's Agenda v. Kemp, United States District Judge Eleanor Ross has found that the challengers would be likely to succeed on the merits of their constitutional claim regarding Georgia's flagging of potential voters as noncitizens ineligible to vote. Recall that a different district judge recently issued an injunction against Secretary of State Kemp — who is also a candidate for Governor — in a challenge to the "mismatch" of voter names.

Here, Judge Ross articulated the appropriate framework as:

When deciding whether a state election law violates First and Fourteenth Amendment associational rights, we weigh the character and magnitude of the burden the State’s rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary.

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).

Judge Ross first found that the burden was "severe for those individuals who have been flagged and placed in pending status due to citizenship." Discussing one particular person, Judge Ross stated that

it was not a nominal effort for him to vote; it was a burdensome process requiring two trips to the polls, his own research, and his hunting down a name and telephone number to give to election officials so that his citizenship status could be verified, all after he had already submitted proof of citizenship with his voter registration application. This is beyond the merely inconvenient.

Relying on Timmons, Judge Ross continued with a strict scrutiny analysis, finding that while the State's interest in ensuring only citizens vote was compelling, the specific means chosen were not narrowly tailored. Here, the focus was on the fact that 4 of the 5 ways in which the State proposed that persons could verify their citizenship required a "deputy registrar," which were derived from a previous settlement. However, Judge Ross declared that the court's hands were not tied as to this matter, and ultimately all 5 of the options "for allowing individuals with flags for citizenship to vote in the upcoming election, sweep broader than necessary to advance the State's interest, creating confusion as Election Day looms."

Judge Ross directed Brian Kemp in his official capacity as Secretary of State to:

Allow county election officials to permit eligible voters who registered to vote, but who are inaccurately flagged as non-citizens to vote a regular ballot by furnishing proof of citizenship to poll managers or deputy registrars.

Update the “Information for Pending Voters” on the Secretary of State’s website so that it provides (a) clear instructions and guidance to voters in pending status due to citizenship and (b) a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.

Direct all county registrars, deputy registrars, and poll managers on how to verify proof of citizenship to ensure that they can properly confirm citizenship status consistent with this order. Issue a press release (a) accurately describing how an individual flagged and placed in pending status due to citizenship may vote in the upcoming election, as set forth herein; and (b) providing a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.

Issue a press release (a) accurately describing how an individual flagged and placed in pending status due to citizenship may vote in the upcoming election, as set forth herein; and (b) providing a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.

Direct the county boards of elections to post a list of acceptable documentation to prove citizenship, which includes a naturalization certificate, birth certificate issued by a state or territory within the United States, U.S. passport, and other documents or affidavits explicitly identified by Georgia law and listed on the Georgia Secretary of State’s website, at polling places on Election Day.

In an opinion piece in the Washington Post, Neal Katayl and George Conway III argue that the president's publicized plan to end "birthright citizenship" by Executive Order would be unconstitutional.

They argue that the EO's content contradicts the plain language of the first sentence of the Fourteenth Amendment, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." In addition to the text, they argue that any originalist understanding of this sentence — which "sprang from the ashes of the worst Supreme Court decision in U.S. history, Dred Scott v. Sandford,the 1857 decision that said that slaves, and the children of slaves, could not be citizens of the United States" — must support birthright citizenship except in the most narrow of circumstances.

Further, they argue that any EO by the president would exceed the scope of his authority, given that it is Congress that is in the "driver’s seat" on issues of immigration, and they quote candidate Trump having recognized that at one time.

The op-ed seeks to bridge factions on this issue by touting its own authorship and the neutrality of the Constitution:

The fact that the two of us, one a conservative and the other a liberal, agree on this much despite our sharp policy differences underscores something it is critically important to remember during a time marked by so much rancor and uncivil discourse: Our Constitution is a bipartisan document, designed to endure for ages. Its words have meaning that cannot be wished away.

The reported announcement that the United States is sending "5,200 troops, military helicopters and giant spools of razor wire to the Mexican border in the coming days to brace for the arrival of Central American migrants President Trump is calling 'an invasion," raises the question of Presidential authority under the Constitution.

A good read is by Ohio State University/Mortiz College of Law Professor Dakota S. Rudesill, The Land and Naval Forces Clause, 86 University of Cincinnati Law Review 391 (2018), available on ssrn.

Professor Rudesill (pictured) asks "What is the constitutional textual basis for key statutes that constrain the national security apparatus and condition the President’s ability to direct it – statutes that are neither spending limitations, nor war declarations or authorizations for the use of military force (AUMFs), nor militia laws?"

He notes that there are a series of such statutory frameworks, including the PosseComitatus Act and its relatives which generally operates as a default ban on active duty federal armed forces engaging in law enforcement. He argues that the best textual footing for such statutes is Article I, Section 8, Clause 14 of the Constitution. This clause gives Congress the power “To make Rules for the Government and Regulation of the land and naval Forces.”

Rudesill concludes:

The statutory frameworks at the heart of the national security legal regime that find textual grounding in the Forces Clause are important to the republic at any moment. There are constant and enduring operational pressures and political incentives for the Executive Branch to disregard the law and its liberty/security balancing work. These statutory frameworks are of special importance, however, in a time of chronic national insecurity: war without end against transnational terrorist networks and within cyberspace, and the alarm and constant engagement of the military and intelligence apparatus they engender. These statutory frameworks safeguard liberty in the atmosphere of uncertainty and fear that national insecurity, together with dysfunctional government and volatile politics, produces. Such anxiety was not, of course, unknown to the Framers . . . .

He contends that Courts could take up the issues, but also Congress has an important role:

Congress’s authority to govern and regulate the land and naval forces and control their Commander in Chief is contingent. The Forces Clause does not stipulate a one-way ratchet toward greater liberty protections. Congress could choose not to use the Forces Clause’s authority – it could acquiesce to harsh presidential discipline of the military, authoritarian employment of it against the people, or reckless use of it abroad. Congress could use the Clause’s authority to weaken FISA, the Posse Comitatus Act, and other liberty-protecting laws. Or, Congress could choose to use the Clause’s authority actively – and more explicitly and consistently – to balance liberty and security considerations in a manner that protects both. The Clause’s potential, like the republic’s fate, ultimately resides with Congress and the love of liberty among the people the Article I branch represents, governs, and protects.

An interesting read as the composition of Congress is at issue in the midterm election.

In her Order & Opinion in Martin v. Kemp, United States District Judge Leigh Martin May stated she would enjoin county election officials from simply rejecting absentee ballot applications and absentee ballots due to an "alleged signature mismatch" but shall instead follow additional procedures. There has reportedly been some controversy regarding the Defendant Secretary of State, Brian Kemp, who is also a candidate for Governor, and the voter restrictions he oversees.

Judge May found that the plaintiffs and plaintiff organizations had standing, there was no laches, and that a facial challenge was appropriate. She also concluded that there was a substantial likelihood of success on the procedural due process challenge (and thus did not reach the other constitutional challenges).

Judge May quickly concluded that the plaintiffs had a constitutionally protected liberty interest in the right to vote by absentee ballot:

While Defendants correctly assert that the right to apply for and vote via absentee ballot is not constitutionally on par with the fundamental right to vote, once the state creates an absentee voting regime, they “must administer it in accordance with the Constitution.” Indeed, the Supreme Court has long held that state- created statutory entitlements can trigger due process. Having created an absentee voter regime through which qualified voters can exercise their fundamental right to vote, the State must now provide absentee voters with constitutionally adequate due process protection.

[citations omitted].

Turning to the issue of the process that is due, Judge May applied the well-known Mathews v. Edlridge (1976) factors. On the first factor weighing the private interest at issue, Judge May stated that the interest implicated the fundamental right to vote and as such was "entitled to substantial weight." On the second factor regarding the risk of erroneous deprivation and the probative value, if any, of additional procedural safeguards, Judge May found that while "the risk of an erroneous deprivation is by no means enormous, permitting an absentee voter to resolve an alleged signature discrepancy nevertheless has the very tangible benefit of avoiding disenfranchisement." On the third and final factor requiring the court to examine the government’s interest, including “the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail,” Judge May concluded that "Defendants cannot cry foul with regard to the burden of additional procedures given that Defendants conceded at oral argument that counties already permit voters to verify their signatures through extrinsic evidence on an ad hoc basis." Further, the remedy of the voter simply showing up did not apply to voters who vote by mail because they cannot show up in person. Thus, Judge May found there was likely a procedural due process problem.

The judge's Order included a proposed injunction, giving the parties until noon on October 25 to object to the form of the injunction, stressing that this was not an "opportunity to readdress the propriety" of the injunction, only whether the language of the injunction would be confusing or unworkable for election officials.

The nomination and subsequent appointment of Brett Kavanaugh to the Supreme Court of the United States have sparked turmoil, outrage, and even more conflict to an already extremely divided America. Many agree, on the right and left, that the Senate hearings featuring Dr. Blasey Ford and Judge Brett Kavanaugh were historic, shocking and yet also affirming of deep-seated beliefs and fears. The hearings and subsequent events have revealed fundamental disagreement about fair and effective treatment of sexual violence survivors, about due process for those accused of sexual violence and about our collective expectations of the role, the demeanor, temperament and moral conduct of judges. . . .

We welcome full-length traditional law review articles with a maximum of 75 pages, as well as shorter essays and commentaries with a minimum of 10 pages. Authors will be selected based on brief abstracts of their articles, essays or commentaries. We aim to ensure an array of perspectives, methodologies and expertise.

"Generous donors," the application materials said, were making "a significant financial investment in each and every attendee." In exchange, the future law clerks would be required to promise to keep the program's teaching materials secret and pledge not to use what they learned "for any purpose contrary to the mission or interest of the Heritage Foundation."

In a talk at the University of Minnesota Law School, Chief Justice Roberts spoke and emphasized the independence of the judiciary after a contentious confirmation process and reported diminishing confidence in the courts.

In his 14 page opinion as a minute order in Cliffords v. Trump, the federal judge dismissed the claim of Stormy Daniels (a/k/a Stephanie Clifford) against President Trump for defamation. Recall the claim was based on Trump's tweet "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!" Daniels' complaint claimed that Trump was not only attacking the truthfulness of Daniels, but also accusing her of a crime: fabricating a crime and an assailant, both of which are crimes under New York law. The complaint alleges that Trump "made his statement either knowing it was false, had serious doubts about the truth of his statement, or made the statement with reckless disregard for its truth or falsity."

The judge, however, found:

Mr. Trump's statement constituted "rhetorical hyperbole" that is protected by the First Amendment.

Additionally, the judge denied a motion to amend the complaint:

The Court holds that Mr. Trump's tweet is "rhetorical hyperbole" and is protected by the First Amendment. Plaintiff cannot amend the Complaint in a way that challenges this holding. During argument on this matter, Plaintiff suggested that she could amend her Complaint to "shore up the malice allegations" and to "provide context for the statement to show that, in fact, it was not political nature at the time it was made." (Transcript * * * ) The former amendments are futile because this Court rules that Mr. Trump's tweet is protected by the First Amendment. The issue of malice is irrelevant to this holding. The latter amendments are futile because there is no way for Plaintiff to amend the Complaint to transform the tweet from "rhetorical hyperbole" into an actionable statement. * * * * Plaintiff cannot change Mr. Trump's tweet or the basic context of the tweet. Nor can Plaintiff withdraw factual allegations that she has made in pleadings before this Court. In the other litigation before this Court, Ms. Clifford argues that Mr. Trump sought to silence her as a strategy to win the Presidential election, a clear argument against the legitimacy of Mr. Trump's Presidency. Mr. Trump issued the tweet as a rejoinder against an individual challenging him in the public arena. This is the definition of protected rhetorical hyperbole. The Court denies Plaintiff leave to amend the Complaint.

The result is not surprising given reports that after a hearing several weeks ago, Judge James Otero indicated he would be dismissing the action.

The Detroit Mercy Law Review is accepting proposals for the 2019 Symposium: Women and the Law. The Detroit Mercy Law Review Symposium will take place on Friday, March 8, 2019 (International Women’s Day) in Detroit, Michigan. Possible topics include, but are not limited to: the history of women in the law, how women have impacted the law, how the law impacts women today, how future legal decisions could affect women’s rights (e.g. if Roe v. Wade, 410 U.S. 113 (1973) were to be overturned), what challenges women still face in the legal profession, the role of gender in the law, and any other topic regarding women and the law.

Proposals should be approximately 250-500 words, double-spaced, and detail the proposed topic and presentation.

Submission Procedure

The deadline to submit proposals is Friday, November 9, 2018 at 5PM EST. All proposals should be submitted to Samantha Buck, Symposium Director, at bucksl AT udmercy.edu. Please indicate whether your proposal is for a presentation only or if you would also like to publish an article with the Detroit Mercy Law Review on your presentation topic. If you are interested in submitting an article, it will be due to the Law Review on Friday, March 15, 2019. Please submit a current CV or resume along with your proposal. We will notify chosen speakers by November 30, 2018. Preference will be given to those willing to submit an article for publication.

In his opinion in Brackeen v. Zinke, United States District Judge for the Northern District of Texas, Reed O'Connor, entered summary judgment for the plaintiffs and found that portions of the Indian Child Welfare Act, ICWA are unconstitutional, specifically violating equal protection, the non-delegation doctrine of Article I, and the commandeering principle of the Tenth Amendment. Passed in 1978, the general purpose of ICWA is to prevent Native children from being removed from their families and tribes based on a finding that "an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies” as Judge O'Connor's opinion acknowledged, quoting Adoptive Couple v. Baby Girl (2013) (quoting 25 U.S.C. § 1901(4)).

Judge Reed O'Connor, however, accepts an argument that was sidestepped by the United States Supreme Court in Baby Girl: that ICWA violates equal protection (applied to the federal government through the Fifth Amendment) by making a racial classification that does not survive strict scrutiny. Recall that in some briefs as well as in the oral argument, the specter of the racial classification was raised. In United States District Judge O'Connor's opinion, that specter is fully embodied. Judge O'Connor found that ICWA does make a racial classification, rejecting the government's view that the classification at issue was a political category. Judge O'Connor reasoned that ICWA defines Indian child not only by membership in an Indian child, but extends its coverage to children "simply eligible for membership who have a biological Indian parent." Thus, Judge O'Connor reasoned, ICWA's definition "uses ancestry as a proxy for race" and therefore must be subject to strict scrutiny. Interestingly, the United States government did not offer any compelling governmental interest or argued that the classification is narrowly tailored to serve that interest. Judge O'Connor nevertheless credited the Tribal Defendants/Intervenors assertion of an interest in maintaining the Indian child's relationship with the tribe, but found that the means chosen was overinclusive, concluding that

The ICWA’s racial classification applies to potential Indian children, including those who will never be members of their ancestral tribe, those who will ultimately be placed with non-tribal family members, and those who will be adopted by members of other tribes.

On the non-delegation claim, Judge Reed O'Connor found it fatal that ICWA allows Tribes to change the child placement preferences selected by Congress and which then must be honored by the states in child custody proceedings.

On the Tenth Amendment claim, Judge Reed O'Connor relied on the Court's recent decision in Murphy v. NCAAholding unconstitutional a federal law prohibiting states from allowing sports gambling regarding anti-commandeering, concluding that

Congress violated all three principles [articulated in Murphy] when it enacted the ICWA. First, the ICWA offends the structure of the Constitution by overstepping the division of federal and state authority over Indian affairs by commanding States to impose federal standards in state created causes of action. See 25 U.S.C. § 1915(a). Second, because the ICWA only applies in custody proceedings arising under state law, it appears to the public as if state courts or legislatures are responsible for federally-mandated standards, meaning “responsibility is blurred.” Third, the ICWA shifts “the costs of regulations to the States” by giving the sole power to enforce a federal policy to the States. Congress is similarly not forced to weigh costs the States incur enforcing the ICWA against the benefits of doing so. In sum, Congress shifts all responsibility to the States, yet “unequivocally dictates” what they must do.

[citations to Murphy omitted].

With more abbreviated analysis, Judge Reed O'Connor found that the applicable regulations pursuant to ICWA violated the Administrative Procedure Act and that Congress did not have power to pass ICWA under the Indian Commerce Clause because it was limited by the Tenth Amendment. However, Judge O'Connor rejected the individual prospective plaintiffs' argument that ICWA violated the Due Process Clause's protection of family rights.

This opinion finding a long-standing statute unconstitutional is sure to be appealed, especially by the Cherokee Nation and other Tribal Intervenors.

The action (or lack of it) is significant, because of the nature of the law. As Pema Levy explains at Mother Jones, the ND law requires ND voters to show proof of a residential address in order to cast a ballot. But it says that PO boxes don't count. That matters, because Native American voters in ND often lack street address, and instead use PO boxes, because the U.S. Postal Service doesn't provide residential delivery in rural Native American communities.

The legislature enacted the law after the state elected Heidi Heitkamp to the Senate by a very slim margin, and with the strong backing of Native American voters. Heitkamp is the only statewide elected Democrat in the state.

Justice Ginsburg, joined by Justice Kagan, dissented. She wrote that not intervening in the case and vacating an Eighth Circuit stay risks voter confusion (because the law was halted by a lower court for the primaries), and that "the risk of disfranchisement is large."

The Seventh Circuit last week upheld Wisconsin's butter-grading system against Dormant Commerce Clause, due process, and equal protection challenges. The ruling means that Wisconsin's butter-grading system stays on the books.

The case, Minerva Dairy v. Harsdorf, took on Wisconsin's law for grading butter, which makes it unlawful "to sell . . . any butter at retail unless it has been graded." To satisfy this requirement, butter may be graded either by a Wisconsin-licensed grader, or by the USDA voluntary butter-grading program. The plaintiff, an Ohio butter producer, argued that the law violated the Dormant Commerce Clause, due process, and equal protection.

The Seventh Circuit disagreed. The court ruled that the law didn't discriminate against interstate commerce, and so didn't violate the Dormant Commerce Clause. (The court didn't even apply Pike v. Bruce Church balancing, because the law didn't discriminate on its face or in effect.) The court also said that Wisconsin's butter-grading-licensing standards, which require a person to come to Wisconsin to test to be a Wisconsin-certified butter-grader, didn't discriminate, either (even though a would-be butter-grader who lives in or close to Wisconsin can get there easier than a would-be grader who lives farther away).

The court rejected the due process and equal protection challenges, too, because the law satisfied rational basis review.

In his opinion in Ramos v. Nielsen, United States District Judge Edward Chen of the Northern District of California enjoined the federal government's termination of TPS — Temporary Protected Status — designations for Haiti, Sudan, Nicaragua, and El Salvador.

As we previously discussed related to the NAACP complaint filed in January in Maryland and related only to Haiti, one argument is that the termination is a violation of equal protection, springing from an intent to discriminate on the basis of race and/or ethnicity.

Judge Chen's opinion finds that the preliminary injunction is warranted based on a likelihood of prevailing on the merits of an Administrative Procedure Act claim, but also on the merits of the equal protection claim. Judge Chen applied the factors from Village of Arlington Heights v. Metro. Hous. Development Corp., 429 U.S. 252 (1977), and concluded that there was sufficient evidence to

raise serious questions as to whether a discriminatory purpose was a motivating factor in the decisions to terminate the TPS designations. In particular, Plaintiffs have provided evidence indicating that (1) the DHS Acting Secretary or Secretary was influenced by President Trump and/or the White House in her TPS decision-making and (2) President Trump has expressed animus against non-white, non-European immigrants.

After reciting specific incidences of animus for several pages, Judge Chen additionally stated that there were departures from the usual procedures which dovetailed with this animus:

there were departures from the normal procedural sequence during the TPS decision-making process; that is, instead of considering all current country conditions as had been done in previous administrations, the DHS political appointees in the current administration made TPS decisions turn on whether the originating condition or conditions directly related thereto continued to exist, disregarding all other current conditions no matter how bad. Moreover, at the apparent behest of then-DHS Secretary Kelly, there was an effort to gather negative information about Haitian TPS beneficiaries prior to the decision on Haiti’s TP designation – in particular, whether Haitian TPS beneficiaries had been convicted of crimes or were on public or private relief. See Degen Decl., Ex. 84 (email). There is no indication that these factors had previously been considered by DHS in making TPS decisions; indeed, the email indicated that the request for the information should be kept quiet. See Degen Decl., Ex. 84 (email) (“Please keep the prep for this briefing limited to those on this email. If you need a specific data set and need to ask someone to pull it, please do not indicate what it is for. I don’t want this to turn into a big thing were people start prodding and things start leaking out.”). The information sought by the Secretary coincides with racial stereotypes – i.e., that non-whites commit crimes and are on the public dole.

[footnote omitted].

This is yet another judicial finding that the administration has acted with racial animus and the administration is sure to appeal it.

[image: Kirstjen Nielsen, current Secretary of Department of Homeland Security]

The Supreme Court heard oral arguments yesterday in Gundy v. United States, the case testing whether the federal Sex Offender Registration and Notification Act delegated too much authority to the Attorney General to determine the Act's application to pre-Act offenders. Our preview is here.

If the arguments any any predictor, the Non-Delegation Doctrine challenge to the Act faces an uphill battle. Indeed, there was only one Justice, Justice Gorsuch, who seriously went to bat against the Act. And his problems with the Act sounded more in due process (void-for-vagueness), and not in the separation of powers or non-delegation.

The question for the Court was whether SORNA's delegation to the AG to determine the applicability of the Act to pre-Act offenders provided an "intelligible principle" to guide the AG's decision. If so, there's no delegation problem; if not, there's a violation of the Non-Delegation Doctrine. (That Doctrine seeks to preserve the separation of powers by preventing Congress from delegating too much law-making authority to the Executive Branch.)

The Court's approach will likely turn on two considerations. First, can the Court look to the Act in its entirety in determining whether Congress legislated with an "intelligible principle," or is it restricted to the particular provision that delegates authority to the AG to determine its application to pre-Act offenders? (Related: Should the Court seek to interpret the Act to avoid a delegation problem?) Court precedent and most of the Justice who spoke seemed to favor the former approach; only Justice Gorsuch spoke out forcefully in favor of the latter approach (and, again, his objections really sounded in due process, not the separation of powers). Next, does the Non-Delegation Doctrine apply differently to legislation that provides more serious enforcement than to legislation that provides less serious enforcement? In particular, is the Doctrine more rigorous when the delegation goes to the AG (as chief federal prosecutor of federal crimes, as opposed to an ordinary regulatory agency), because a vague delegation would put both the power to interpret the law and the power to prosecute the criminal law in the hands of one executive officer? Again, precedent and questions seemed to say no, and, again, only Justice Gorsuch seriously pushed back.

As far as the separation of powers goes, it's worth noting that if the Court rules that SORNA violates the Non-Delegation Doctrine, this is a net gain for the judicial branch: it means that the courts can play a more aggressive role than they have played in determining the authority of executive agencies in interpreting and executing the law. To that extent, we might consider this case alongside other challenges to the administrative state (challenges to the Chevron doctrine, challenges to Morrison v. Olson and independent agencies, etc.).

It's certainly possible that the Court might do some refining around the edges of the Non-Delegation Doctrine. (Maybe that's why the Court granted cert. Otherwise, the grant seems a mystery.) But it seems quite unlikely that the Court will hold the SORNA's delegation to the AG unconstitutional.

Check out Laurence Tribe's piece in the NYT, All the Ways a Justice Kavanaugh Would Have to Recuse Himself. Tribe argues that given Judge Kavanaugh's "intemperate personal attacks on members of the Senate Judiciary Committee, his partisan tirades" last week, and "his stated animosities and observation that 'what goes around comes around,'" he'd have to recuse himself from a whole lot of cases:

Judge Kavanaugh's attacks on identifiable groups--Democrats, liberals, "outside left-wing opposition groups" and those angry "about President Trump and the 2016 election" or seeking "revenge on behalf of the Clintons"--render it inconceivable that he would "administer justice without respect to persons," as a Supreme Court justice must swear to do, when groups like Planned Parenthood, the NRDC Action Fund, the NAACP Legal Defense Fund, NARAL Pro-Choice America or the American Civil Liberties Union appear as parties or file briefs on behalf of plaintiffs and defendants.

The Supreme Court will hear oral arguments tomorrow in Gundy v. United States, the case testing whether Congress violated the separation of powers by delegating too much authority to the Attorney General to determine whether the Sex Offender and Registration and Notification Act applies to pre-Act offenders. Here's my preview for the ABA Preview of United States Supreme Court Cases (with permission):

FACTS

The Sex Offender Registration and Notification Act

In 2006, Congress enacted SORNA to “establish a comprehensive national system for the registration” of sex offenders. Before SORNA, every state had its own registration system, and the federal government required states to adopt certain unifying measures or lose certain federal funds. SORNA strengthened these baselines, but it also did more.

In particular, SORNA created—and required states to create, as a condition of receiving certain federal funds—criminal penalties for individuals who fail to comply with its registration requirements. SORNA created a federal three-tier system for classifying sex offenders based on the significance of their offense, and made it a federal crime to fail to register for a specified number of years (depending on the tier of the crime). (This was different than the classification system that many states previously used, which set requirements based on individualized risk assessments of the offenders.) The Act states that a person who (1) “is required to register under” SORNA; (2) “travels in interstate or foreign commerce”; and (3) “knowingly fails to register or update a registration as required by” SORNA is guilty of a federal crime punishable to up to ten years in prison. 18 U.S.C. § 2250(a). It also requires states (again, as a condition of receiving certain federal funds) to “provide a criminal penalty that includes a maximum term that is greater than 1 year for the failure of a sex offender to comply with” SORNA’s registration requirements.

But Congress didn’t specify whether these new criminal provisions would apply to pre-Act offenders. (The question was important: legislators estimated that there were more than 500,000 pre-Act offenders when Congress passed the law.) Instead, Congress left it to the Attorney General. SORNA says: “The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter . . . and to prescribe rules for the registration of any such sex offenders . . . .” 34 U.S.C. § 20913(d).

This gives the Attorney General quite a bit of discretion. It allows the Attorney General to apply SORNA to pre-Act offenders immediately, or later, or not at all. It also allows the Attorney General to make a decision at one time, but to change course later, or under any new President, with regard to whether and how SORNA’s registration requirements would apply to pre-Act offenders.

In fact, the Attorney General exercised this discretion, at least to some extent. Attorney General Alberto G. Gonzales issued an interim rule about six months after Congress passed SORNA stating that SORNA would apply to pre-Act offenders. Since then, different Attorneys General issued different guidelines as to how it would apply, particularly with regard to offenders who had been released from prison for longer than SORNA’s maximum registration periods (for example, a person who was released more than 25 years before Congress enacted SORNA, but who would be subject to a maximum 25-year registration period under SORNA). As relevant to this case, Attorney General Eric Holder issued guidance in 2010 that SORNA credit pre-Act offenders with their entire prior period in the community, regardless of what a local jurisdiction might decide.

Gundy’s Conviction

In 2005, Herman Avery Gundy pled guilty in Maryland to sexual assault of a minor. He was sentenced to 20 years in prison, with ten years suspended and five years of probation.

In November 2010, Gundy completed his state sentence and was transferred to the custody of the Federal Bureau of Prisons to serve a related federal sentence. The Bureau of Prisons transferred Gundy from Maryland to a prison in Pennsylvania. In July 2012, it transferred him from Pennsylvania to a halfway house in New York to complete his sentence. Gundy was released on August 27, 2012. He remained in New York.

In October 2012, Gundy was arrested in New York and charged with violating SORNA’s federal criminal provision. The indictment alleged that Gundy (1) was “an individual required to register” under SORNA based on his 2005 Maryland sex offense, (2) traveled in interstate commerce, and (3) “thereafter resided in New York without registering” as required by SORNA.

Gundy moved to dismiss the indictment, arguing, among other things, that SORNA could not constitutionally apply to him, because Congress delegated too much authority to the Attorney General to make a fundamentally legislative decision about whether SORNA applied to pre-Act offenders. The district court initially dismissed the indictment, but later, on remand from the Second Circuit, rejected Gundy’s constitutional argument. The Second Circuit affirmed, and remanded the case for trial. Gundy was convicted, and the district court sentenced him to time served and five years of supervised release. Gundy appealed, again arguing that SORNA could not constitutionally apply to him. The Second Circuit again rejected this argument. This appeal followed.

CASE ANALYSIS

In order to protect Congress’s lawmaking authority within our separation-of-powers system—and to ensure that Congress does not cede this authority to the Executive Branch—the Court has set a standard for congressional delegations: it requires Congress to provide “intelligible principles” whenever it delegates authority to enforce the law to agencies within the Executive Branch. This is called the “Nondelegation Doctrine.”

Historically speaking, the Nondelegation Doctrine has been loose and quite permissive, giving Congress wide berth. Thus, the Court has said that a congressional delegation satisfies the Nondelegation Doctrine “if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of th[e] delegated authority.” American Power & Light Co. v. SEC, 329 U.S. 90 (1946). To date, the Court has found only two statutory delegations that violated the Doctrine, and both of those provided almost no guidance to the Executive.

Still, Gundy contends that SORNA’s delegation to the Attorney General to determine the Act’s application to pre-Act offenders violates the Doctrine. Gundy argues first that SORNA provides no intelligible principles to the Attorney General, because it doesn’t say “whether he should make any pre-Act offenders register; which offenders should be required to register; or even what he must (or must not) consider in deciding these questions.” He says that even the government concedes that SORNA allows the Attorney General to take no action at all, to wait years before taking action, and to reverse course at any time. Gundy claims this unbridled authority “can only be characterized as ‘legislative’ power[]” in violation of the separation of powers.

Gundy argues next that the Court should apply a heightened nondelegation standard in this context, and that SORNA violates the heightened standard, too. In particular, Gundy claims that SORNA delegates “significant power” to the Attorney General “to make policy decisions that bear directly on an individual’s liberty . . . ; disturb settled expectations of law . . . ; and infringe states’ sovereign interests (by regulating purely intrastate conduct and dictating to states, as a condition of federal funding, how they must regulate and criminalize conduct within their own borders).” Gundy contends that these features of SORNA require a heightened nondelegation standard, and that SORNA fails, because “the statute gives the Attorney General no meaningful guidance as to how to exercise these vast powers.”

The government counters that SORNA satisfies the traditional Nondelegation Doctrine. The government says that the Act identifies the official to whom it delegates authority (the Attorney General), and that SORNA’s text and history sufficiently provide a “general policy” that the Attorney General should pursue in making the determination. The government claims that SORNA thus easily satisfies the deferential traditional nondelegation standard.

To illustrate its point, the government contends that SORNA provides the Attorney General the exact same discretion as a hypothetical (and valid) statute that required all pre-Act offenders to register but authorized the Attorney General to grant waivers. Under this hypothetical (and, again, valid) statute, “the scope of [the Attorney General’s] authority . . . would be the same.” The government says that if Congress can enact this hypothetical statute (which it can), then it can also enact SORNA.

The government argues next that the Court need not address Gundy’s argument about a heightened nondelegation standard. The government contends that SORNA does not raise especial concerns that would justify a heightened standard, that the Court has already rejected a heightened standard, and that SORNA would satisfy any standard, anyway.

SIGNIFICANCE

This case addresses a key question left open the last time the Court took on SORNA, in Reynolds v. United States. 565 U.S. 432 (2012). In that case, the Court ruled that pre-Act offenders do not have to register under SORNA until the Attorney General validly specified that the Act’s registration provisions applied to them. In dissent, Justice Antonin Scalia, joined by Justice Ruth Bader Ginsburg, noted that SORNA potentially raised a nondelegation problem:

it is not entirely clear to me that Congress can constitutionally leave it to the Attorney General to decide—with no statutory standard whatever governing his discretion—whether a criminal statute will or will not apply to certain individuals. That seems to me sailing close to the wind with regard to the principle that legislative powers are nondelegable.

This case picks up that cue. That’s notable, because the Nondelegation Doctrine has been all but dormant since 1935. In that year, the Court ruled in Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), that two different statutes were unconstitutional. Since then, the Court has not ruled a single act of Congress unconstitutional under the Doctrine. This case could resurrect this long-dormant doctrine.

This could be especially significant in the broader context of a Court that seems increasingly skeptical, even hostile, to aggressive agency rule-making—what some describe as impermissible “lawmaking”—within the Executive Branch. This hostility comes out in the increasingly common arguments from some quarters against judicial deference toward agency rule-making under so-called “Chevron deference.” Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Chevron deference says that the courts should defer to an agency’s interpretation of a statute, so long as the interpretation is reasonable. Opponents of Chevron deference call for greater judicial scrutiny of agency interpretations, in order to rein them in. (As this piece goes to print, Judge Brett Kavanaugh is fielding questions on this precise topic from Senators on the Judiciary Committee.) Arguments against Chevron deference share this feature with arguments against the deferential Nondelegation Doctrine: They both seek to control an Executive bureaucracy that some see as an unaccountable, lawmaking “fourth branch” of government.

Within this context, the Court’s ruling could contribute to a more general move by the Court to rein-in Executive agency actions. Such a move could shift power away from Executive agencies to Congress.

But on that point, it’s important to remember that in our separation-of-powers system there’s a third independent branch of government, the judiciary. And if the Court exercises its prerogative to shift power in this way—by tightening up the Nondelegation Doctrine, by doing away with Chevron deference, or by otherwise reining in agencies’ actions—it looks more like the Court is the branch that gets a boost in power.

The Supreme Court will hear oral arguments tomorrow in Madison v. State of Alabama, the case testing whether the Eighth Amendment prohibits a state from executing a person whose medical condition prevents him from remembering his crime. Here's my preview from the ABA Preview of United States Supreme Court Cases (with permission):

FACTS

In April 1985, Vernon Madison visited the home of his ex-girlfriend, Cheryl Green. Madison, who until a few days earlier had been living with Green, was there to collect some personal items.

At the same time, police officer Julius Schulte came to Green’s home in order to investigate a report that Green’s 11-year-old daughter was missing. Green’s daughter came home before Schulte arrived. Nevertheless, Schulte, at the request of Green’s neighbors, stayed at Green’s home to protect Green and her daughter until Madison left.

Madison at one point left Green’s property. But he returned with a pistol and shot Schulte twice in the head, killing him, as Schulte sat in his car. Madison also shot Green twice in the back.

Madison was convicted of capital murder, and the trial court sentenced him to death. The state appeals court reversed, however, concluding that Madison showed that the prosecutors excluded black veniremembers in violation of Batson v. Kentucky, 476 U.S. 79 (1986). After a second trial, Madison was again convicted of capital murder and again sentenced to death. But the appeals court again reversed his conviction, this time because the prosecutors introduced inadmissible evidence. Finally, after a third trial, Madison was again convicted and sentenced to death, and state appeals courts affirmed.

Madison pursued a series of state and federal post-conviction, collateral challenges. Each of these was ultimately denied. The Supreme Court declined to intervene. Madison v. Thomas, 135 S. Ct. 2346 (2015).

During this period (and while he was in prison), Madison suffered multiple strokes that left him severely impaired. In May 2015, he suffered a basilar artery occlusion, which caused bilateral cerebral and occipital infarctions and resulted in increased brain pressure, white matter attenuation, and possible temporal lobe damage. In January 2016, he suffered a thalamic stroke, which left him disoriented, appearing “very confused,” and with significant memory loss. (Madison suffered other strokes, too, which “negatively impacted his cognitive and body functioning,” but the details are less clear.)

Madison now suffers from encephalomalacia, meaning that there are some areas of his brain where the tissue is dead. He also suffers from vascular dementia, cognitive deficits, severe memory loss, and other chronic conditions that have decreased his capacity to “rationally understand[] his circumstances.”

After the state Attorney General asked the Supreme Court of Alabama to set an execution date, Madison filed state-court post-conviction petitions claiming that he was incompetent to be executed. At a hearing to evaluate his competence, Madison presented evidence of his cognitive injuries, dementia and memory loss, and diminished capacity for understanding his circumstances. In particular, Madison’s expert, Dr. John Goff, a neuropsychologist, testified that Madison’s memory had significantly declined, that he could not remember important events and facts, that he had a borderline-intelligence IQ of 72, and that he could not perform basic cognitive functions. The court-appointed expert, Dr. Karl Kirkland, agreed that Madison suffered physical and cognitive decline as a result of his strokes, but that Madison remembered the details of his court cases and had “a rational understanding that he is to be executed for killing a police officer in 1985.”

The state court found Madison competent to be executed. Under state law, Madison could not appeal this finding. So he brought a federal habeas corpus suit, raising the same claims that he raised in the state-court proceedings. The federal district court denied Madison’s application, but the United States Court of Appeals for the Eleventh Circuit reversed. The Supreme Court summarily reversed in Dunn v. Madison, 138 S. Ct. 9 (2017), although Justice Ruth Bader Ginsburg noted in concurrence that “[t]he issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet addressed by the Court.”

After the state set Madison’s execution date, Madison filed a second state-court petition challenging his competency to be executed. The court rejected Madison’s petition, writing that it “did not provide a substantial threshold showing of insanity . . . sufficient to convince this Court to stay the execution.”

This appeal followed.

CASE ANALYSIS

The Supreme Court ruled in Panetti v. Quarterman, 551 U.S. 930 (2007), that the Eighth Amendment prohibits a state from executing a person whose mental capacity prevents him or her from comprehending the reason for his or her punishment or rationally understanding the punishment. Moreover, the Court held that the state must provide a minimum process for a convicted person to show that he or she lacks this mental capacity. The Court so ruled because important purposes of capital punishment—retribution against a person who recognizes the severity of his or her offense, and “community vindication”—are ill-served by executing a person who lacks this fundamental mental capacity.

At the same time, however, the Court has never said whether Panetti applies to individuals, like Madison, who, because of cognitive impairments, simply cannot remember his or her crime. And it’s never said whether, independent of Panetti, the Eighth Amendment and its “evolving standards of decency” prevent a state from executing a person who cannot remember the crime. These issues are what this case is about.

Madison argues first that his cognitive impairments render him unqualified for the death penalty under Panetti. He claims that because of his impairments he cannot “understand the circumstances surrounding a scheduled execution,” and thus falls squarely within the Panetti rule prohibiting his execution.

Madison argues next that his execution would not serve the penological objectives of the Eighth Amendment. He contends that his impairments—including both his inability to understand why he will be executed and his inability to remember his crime—mean that his execution would not serve any retributive purpose, or any other penological objective, for that matter.

Finally, Madison argues that “advances in neurological science now make clear the nature of this incompetency.” This means that condemned prisoners can’t simply fake a cognitive impairment to cleverly get out from under the death penalty, and that a ruling in his favor will not open the floodgates to false claims of memory loss.

The state counters that the state court’s conclusions satisfy Panetti. It says that Madison’s cognitive impairments do not preclude him from understanding that he is being punished for killing Officer Schulte, “or from sharing the community’s understanding of crime, punishment, retribution, and death.” The state contends that while Madison may not remember his crime, understanding his punishment is different. And the state court properly concluded, under Panetti, that Madison understood his punishment (even if he cannot remember his crime) and thus qualified for the death penalty.

The state argues next that nothing about the Eighth Amendment prohibits a state from executing a person who cannot remember his or her crime. The state asserts that neither the common law, “objective indicia of society” and professional associational standards, nor the retributive and deterrence purposes of the death penalty would counsel against a state executing a person who does not remember the crime. The state writes, “Madison’s mental condition does not preclude him from understanding that he is being punished for murdering a police officer or that such a murder is a grave moral wrong,” and “Madison’s execution will serve as an example to others that the intentional murder of a police officer will be punished.”

Finally, the state argues that Madison’s approach would increase the potential for false claims of cognitive impairment and manipulation of the death-penalty system. The state says that Madison’s argument gives undue weight to a diagnosis of dementia; that Madison’s argument would open the door to incompetence claims due to other cognitive impairments; and that “a person’s assertion that he cannot remember his crime is not objectively verifiable.”

SIGNIFICANCE

This case addresses an important unanswered question in the Court’s Eighth Amendment jurisprudence: Does the Eighth Amendment prohibit a state from executing an individual who cannot remember his or her crime?

The question comes on the heels of a series of rulings in the last couple decades that restrict the application of the death penalty and mandatory lifetime imprisonment. Thus, the Court ruled that the Eighth Amendment forbids imposing the death penalty for nonhomicide crimes, Kennedy v. Louisiana, 554 U.S. 407 (2008), and on mentally retarded defendants. Atkins v. Virginia, 536 U.S. 304 (2002). The Court held that the Amendment bars capital punishment for children, Roper v. Simmons, 543 U.S. 551 (2005), and life sentences without parole for children who commit nonhomicide offenses. Graham v. Florida, 560 U.S. 48 (2010). Most recently, the Court ruled in Miller v. Alabama, 567 U.S. 460 (2012), that the Eighth Amendment prohibits a state from imposing a mandatory life sentence without parole for a juvenile defendant. (Bryan Stevenson, Madison’s attorney, argued that case.)

These were all closely divided, 5-4 rulings along traditional ideological lines (save for Graham and Atkins, which were both 6-3, with Chief Justice John Roberts concurring in Graham). Justice Kennedy not only sided with the majority in each of these cases, he also wrote the majority opinions in Miller, Kennedy, Graham, and Roper. In other words, Justice Kennedy was not only the swing vote on these issues, he was the Court’s leader on them.

Without Justice Kennedy on the Court, there may not be a majority to overturn the state court ruling here. (Among the Court’s conservatives, Chief Justice Roberts is probably the closest to the progressives on these issues, and yet he is probably less willing than Justice Kennedy to restrict the death penalty.) If Chief Justice Roberts joins the conservatives, the state court ruling will stand, whether or not the Senate confirms Judge Brett Kavanaugh in time for this case. (A Justice Kavanaugh seems likely, though not certain, to side with the conservatives, creating a likely 5-4 split against Madison. But even without a Justice Kavanaugh, a 4-4 split (along conventional ideological lines) would uphold the lower court ruling, without producing a precedential opinion.)

More generally, Justice Kennedy’s replacement seems likely to go against Justice Kennedy on any of these cases that carve out categorical exceptions to the death penalty and mandatory life sentences under the Eighth Amendment. If so, a new, conservative 5-4 majority could restrict or even undo much of the work that Justice Kennedy did on these issues.